NOTE TERMINATION AND CONVERSION AGREEMENT
EXHIBIT 10.2
This
Note Termination and Conversion Agreement (the “Agreement”) is made and entered
into as of November 15, 2016 by and among Symbid Corp., a Nevada
corporation with a place of business at Xxxxxxxxxxxxx 00, 0000 XX
Xxxxxxxxx, Xxx Xxxxxxxxxxx (“SBID”), Symbid Coöperatie
U.A., a variable interest Netherlands entity with a place of
business at Xxxxxxxxxxxxx 00, 0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx
(“SC”) and
XX, with a place of
business at XX, The
Netherlands (the “Noteholder”).
WHEREAS, SBID issued a $XX September X, 2015 promissory note to the
Noteholder, a copy of which is annexed hereto as Schedule A (the
“Note”)
and
WHEREAS, the parties have agreed to
terminate the Note and not require the payment of principal and
interest thereon effective as of November 15, 2016;
and
WHEREAS, SC is the licensee for all of
SBID’S crowdfunding business in The Netherlands;
and
WHEREAS, SC is a variable interest
entity which SBID effectively controls through corporate governance
rather than ownership; and
WHEREAS, SBID receives currently
revenues from SC through IP license fees, where it is envisioned SC
will be granted a designated IP license directly from its owner
Stichting Symbid IP Foundation to conduct its business in the
Netherlands whereby it will be agreed SC will reimburse the further
development of the IP for which SBID will receive in return a
non-exclusive license on usage of the further by SC developed IP;
and
WHEREAS, SBID intends to liquidate the
participations in both Equidam Holding B.V. and Kredietpaspoort
Coöperatie UA under condition the required approvals through,
not limited to but including, a shareholder vote will be obtained;
and
WHEREAS, in consideration of the
termination of the Note, SBID and SC have agreed to grant to
Noteholder, or any by Noteholder assigned party, an equity interest
in SC consisting of XX units (XX% of the future profit rights
of SC) (the “SC Participation
Right”) further specified in a Membership Agreement
with SC (“Membership
Agreement”) and Noteholder has determined not to
obtain a Right Of First Refusal on Asset Management activities in
the Small and Medium-size Enterprise asset class
(“ROFR”) which
has been offered to, and chosen by, one other noteholder and is
further specified in a ROFR agreement:
NOW, THEREFORE, in consideration of the
premises, and of the promises, covenants and conditions contained
herein, the parties intending to be legally bound, hereby agree as
follows:
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1. Note
Termination.
The
Parties agree that in consideration of the grant of the
Participation Right, the Note is hereby terminated and cancelled
effective the date hereof without any obligation on the part of
SBID or other persons to pay principal or interest
thereon.
2.
Grant
of SC Participation Right.
SC
hereby grants the SC Participation Right to the Noteholder, or any
by Noteholder assigned party, as the result of and in consideration
of the Note cancellation, effective the date hereof.
3.
Termination
of Pre-Emptive Rights.
In
consideration of the SC Participation Right, in addition to the
cancellation of the Note, the pre-emptive right granted to
Noteholder pursuant to Section 1.23 of the Subscription
Agreement under which the Note was purchased shall be
terminated and shall have no further force or effect.
1. Representations,
Warranties and Covenants of Noteholder.
Noteholder
represents, warrants, and covenants to the Company
that:
4.1 Investment
Purpose. Noteholder is acquiring the SC
Participation Right for its own account for investment only and not
with a view towards, or for resale in connection with, the public
sale or distribution thereof, except pursuant to sales registered
or exempted under the Securities Act.
4.2 Accredited
Investor / Non-U.S. Person Status. Noteholder is
an “Accredited
Investor” as that term is defined in Rule 501(a)(3) of
Regulation D of the Securities Act and/or a Non-U.S. Person for
purposes of Regulation S of the Securities Act.
4.3 Authorization,
Enforcement. This Agreement has been duly and
validly authorized, executed and delivered on behalf of Noteholder
and is a valid and binding agreement of Noteholder enforceable in
accordance with its terms.
4.4 Brokers. There
are no brokerage commissions, finder’s fees or similar fees
or commissions payable by Noteholder in connection with the
transactions contemplated hereby based on any agreement,
arrangement or understanding with Noteholder or any action taken by
Noteholder.
5.
Representations,
Warranties, and Covenants of SBID and SC.
SBID
and SC hereby make the representations set forth below and covenant
and agree as follows to Noteholder (in addition to those set forth
elsewhere herein):
5.1 Organization
and Qualification. SBID and SC have been duly
organized, validly exist and are in good standing under the laws of
their respective jurisdictions of formation. SBID and SC have full
corporate power and authority to enter into this Agreement and this
Agreement has been duly and validly authorized, executed and
delivered by SBID and SC and is a valid and binding obligation of
SBID and SC, enforceable against SBID and SC in accordance with its
terms, except as such enforcement may be limited by the bankruptcy
laws and laws effecting creditors’ rights,
generally.
5.2 Authorization,
Enforcement, Compliance with Other
Instruments. (i) SBID and SC have the requisite
corporate power and authority to enter into and perform their
obligations under this Agreement, (ii) the execution and delivery
of all transaction documents by SBID and SC and the consummation by
SBID and SC of the transactions contemplated hereby, including,
without limitation, the issuance of the SC Participation Right, has
been duly authorized by their respective managements and no further
consent or authorization is required by them, their respective
managements or their stockholders, (iii) the transaction documents
have been duly executed and delivered by them, (iv) the transaction
documents constitute their valid and binding obligations
enforceable against them in accordance with their terms, and (v)
the persons signing this Agreement on behalf of SBID and SC have
full corporate or other requisite authority to execute the
transaction documents and to bind them.
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5.3 No
Conflicts. The execution and delivery by SBID and
SC of, and the performance of their obligations under this
Agreement in accordance with the terms of this Agreement will not
contravene any provision of applicable law or the charter documents
of SBID and SC or any agreement or other instrument binding upon
SBID and SC, or any judgment, order or decree of any governmental
body, agency or court having jurisdiction over SBID and SC, and no
consent, approval, authorization or order of, or qualification
with, any governmental body or agency is required for the
performance by SBID and SC of their respective obligations under
this Agreement in accordance with the terms of this
Agreement.
5.4 Brokers. Neither
SBID nor SC have taken any action which would give rise to any
claim by any person for a brokerage commission, placement agent or
finder’s fees or similar payments by SBID or SC relating to
this Agreement or the transactions contemplated
hereby.
5.5 Cancellation
of all notes. All of the other 2015 Notes from the Private
Placement Offering in which Noteholder participated have been
similarly settled and cancelled or will be similarly settled and
cancelled on or prior to November 15, 2016, although one of the
other 2015 noteholders has determined to not only take
participation rights in SC but a combination of the ROFR and
participation rights in SC. Also on or prior to November 15, the
holders of 2016 Notes have agreed or will agree to settle and
cancel their 2016 Notes in consideration of participation rights in
SC. Upon settlement and cancellation of the 2015 Notes and 2016
Notes, as provided herein, SBID will have no Notes
outstanding.
6.
Miscellaneous.
(a)
Note holder
acknowledges and agrees that the execution of the Note Termination
Agreement precludes Note holder from instituting legal proceedings
in the future against SBID and affiliated persons based upon the
Notes.
(b)
Each of the parties
agree to take such actions as are reasonably necessary to carry out
the intentions of the parties under this Agreement.
(c)
This Agreement may
be executed in one or more counterparts which when taken together
shall constitute one agreement.
(d)
This Agreement
supersedes and cancels any prior agreements relating to the subject
matter contained herein.
[Signature Page
Follows]
{00177968.1 / 3006.002}
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IN WITNESS WHEREOF, the parties hereto
have executed and delivered this Agreement as of the date first
written above.
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_____________________________________By:
Korstiaan Zandvliet
Name:
Title:
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SYMBID
COÖPERATIE U.A.
______________________________________By:
Maarten Xxxxxxxxx
Name:
Title:
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SYMBID
COÖPERATIE U.A.
_____________________________________By:
Xxxxx Xxxxxxxxx
Name:
Title:
|
|
|
NOTEHOLDER
By:
Name:
Title:
|
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{00177968.1 /
3006.002}
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